Appellants Gabriel Rodriguez-Aguirre, Eleno Aguirre, Doloras Contreras
and Tony Bancomo appeal from the district court's denial of their Rule 41(e)
motion for the return of property. The property in question was allegedly seized
in 1992 pursuant to several warrants executed on homes and business properties
owned by Appellants. While many of the seized items were forfeited by the
United States in valid civil forfeiture actions, Appellants allege that
approximately 127 of the seized items were never properly forfeited and thus
should be returned to Appellants. The magistrate judge assigned to the case
recommended denying Appellants' motion based on lack of standing and laches,
and Appellants' objections to the magistrate's recommendations were rejected by
the district court when dismissing Appellants' motion.

Exercising jurisdiction pursuant to 28 U.S.C. § 1291, we hold that
Appellants have established standing to pursue their Rule 41(e) motion. We
further find that the district court erred in applying the doctrine of laches without
requiring Plaintiff-Appellee, the United States, to demonstrate material prejudice.
Finally, we hold that the six-year statute of limitations set forth at 28 U.S.C.
§ 2401(a) applies to the bringing of a Rule 41(e) motion. In cases where the
government has effected an administrative forfeiture of property, a Rule 41(e)
claimant's cause of action alleging unconstitutional lack of notice of the
forfeiture accrues when he or she discovers or should have discovered that the
property was forfeited. In cases where there has been no forfeiture action brought
against property that has been seized in conjunction with a criminal proceeding, a
Rule 41(e) claimant's cause of action does not accrue until the government no
longer has the right to keep the seized items as evidence in the criminal
proceeding. Because we cannot determine which accrual date applies in this case,
we REVERSE and REMAND this case to the district court for further
proceedings, including a determination of the timeliness of Appellants' motion.

BACKGROUND

On April 20, 2000, Appellants Gabriel Rodriguez-Aguirre, Eleno Aguirre,
Doloras Contreras and Tony Bancomo filed a motion for the return of property
pursuant to Rule 41(e) following their convictions on multiple counts of drug,
money laundering and related offenses. Appellants' convictions were entered on
December 15, 1994. All but Bancomo appealed their convictions, and each
Appellant's conviction was upheld on appeal in 1997. SeeUnited States v.
Rodriguez-Aguirre, 108 F.3d 1228 (10th Cir. 1997); United States v. Aguirre, 108
F.3d 1284 (10th Cir. 1997); United States v. Contreras, 108 F.3d 1255 (10th Cir.
1997).(1)

The property in question was seized by federal agents pursuant to warrants
issued in 1992, which allowed the agents to seize fifty-one parcels of real
property as well as the contents of those properties. The agents executing the
warrants also seized, among other things, race horses, vehicles, cash, personal
property and a life insurance policy. Over the course of the next five years, the
United States initiated a total of three civil forfeiture proceedings against the
seized properties, all of which resulted in judgments of forfeiture. SeeUnited
States v. Fifty-One Items of Real Property, CIV 92-1155-JC (D.N.M. Dec. 22,
1993); United States v. Item One: Approximately 247 Horses, CIV-93-102 JC
(D.N.M. Jun. 29, 1994); United States v. Eighty Acres, CIV-95-0981-JC (D.N.M.
Aug. 8, 1997).

Appellants do not challenge the judgments of forfeiture in those cases. In
their Rule 41(e) motion, however, Appellants argue that the itemized returns on
the search warrants reveal 127 seized items that appear never to have been validly
forfeited by the United States in any of those three civil forfeiture proceedings or
in any administrative forfeiture proceeding.

Rule 41(e) of the Federal Rules of Criminal Procedure states:

A person aggrieved by an unlawful search and seizure or by
the deprivation of property may move the district court for the
district in which the property was seized for the return of the
property on the ground that such person is entitled to lawful
possession of the property. The court shall receive evidence on any
issue of fact necessary to the decision of the motion. If the motion is
granted, the property shall be returned to the movant, although
reasonable conditions may be imposed to protect access and use of
the property in subsequent proceedings. If a motion for return of
property is made or comes on for hearing in the district of trial after
an indictment or information is filed, it shall be treated also as a
motion to suppress under Rule 12.

Fed. R. Crim. P. 41(e). Appellants do not contend that the 127 listed items of
personal property were taken from them pursuant to an unlawful search and
seizure. Instead, Appellants argue that they have been wrongfully "depriv[ed]" of
their property and are "entitled to lawful possession of the property."
Specifically, Appellants assert that those 127 items do not appear on any of the
lists of forfeited property related to the three civil forfeiture actions undertaken
by the United States between 1992 and 1997. Further, they argue that neither they
nor any member of their families ever received notice of an administrative
forfeiture relating to those 127 items, and thus that none of those items "could . . .
have been forfeited in compliance with the notice requirements of the Due
Process Clause." Appellants' claim for relief under Rule 41(e) is therefore two-fold. They argue,
first, that if any of the 127 items were not actually forfeited by
the United States in any of the three civil forfeiture proceedings, then Appellants
retain an ownership or possessory interest in those items and the items should
therefore be returned. Second, and in the alternative, Appellants argue that if any
of the 127 items were administratively forfeited, then Appellants never received
adequate notice of the pending forfeiture and thus the forfeiture of those items is
void.

Appellants' Rule 41(e) motion included a declaration from Rodriguez-Aguirre(2) which listed the 127 items(3) he believed had never been properly forfeited
by the United States and which stated that each piece of property was owned by
"either [him] or [his] relatives."(4) He also
stated that he had personally owned,
leased or possessed thirty-two of the fifty-one seized properties, and "most of the
personal property" seized from them, listed in the first forfeiture action initiated
by the United States. The other Appellants did not include declarations with the
Rule 41(e) motion but assert on appeal that they "have always intended to submit
declarations, live testimony, and other evidence of ownership when the case gets
beyond the pleading stage and into the proof stage."

At the time Appellants filed their Rule 41(e) motion, the statute of
limitations had run on the United States' ability to commence forfeiture
proceedings against seized property that had not already been subject to forfeiture
proceedings initiated by the United States. See 19 U.S.C. § 1621 ("No suit
or
action to recover . . . any pecuniary penalty or forfeiture of property accruing
under the customs laws shall be instituted unless such suit or action is commenced
within five years after the time when the alleged offense was discovered . . . .").

The United States filed a motion to dismiss Appellants' Rule 41(e) motion,
arguing: "(1) the applicable statute of limitations barred the Rule 41(e) motion;
(2) defendants lacked Article III standing to assert a claim to the alleged property;
and (3) the equitable doctrine of laches barred the motion."(5)

The magistrate judge assigned to the case recommended denying
Appellants' motion on July 20, 1997, based upon lack of standing and the
equitable doctrine of laches. In regard to the issue of standing, the magistrate
concluded that because "[b]oth an allegation of ownership and some evidence of
ownership are required to establish standing to contest a civil forfeiture,"
Appellants' "unsupported declaration that either [Rodriguez-Aguirre] or his
relatives own the property" was "insufficient to confer standing to assert a claim
for the property." In regard to the United States' laches argument, the magistrate
found that Appellants' delay in filing the Rule 41(e) motion was not excused by
the protracted litigation in which they had been engaged or by the amount of
property that had been seized, and thus that Appellants' motion "should be denied
based on the equitable doctrine of laches." The magistrate made no finding
regarding whether the United States was materially prejudiced by Appellants'
delay in filing the Rule 41(e) motion.

Appellants' objections to the magistrate's recommendations were rejected
by the district court on August 17, 2000, at which time the district court adopted
the magistrate's recommendations and dismissed Appellants' Rule 41(e) motion.
This appeal followed.

DISCUSSION

A. Standard of Review

The district court's decision that Appellants lacked standing to bring their
Rule 41(e) motion is reviewed de novo. SeeUtah v. Babbitt, 137 F.3d 1193,
1203
(10th Cir. 1998). The district court order dismissing the motion on the basis of
laches is also reviewed de novo, cf.Hutchinson v. Pfeil, 105 F.3d 562, 564
(10th
Cir. 1997), as is the question of whether a statute of limitations bars the motion.
SeeCisneros v. ABC Rail Corp., 217 F.3d 1299, 1304 (10th Cir. 2000).

Motions to dismiss for lack of subject matter jurisdiction under Rule
12(b)(1) may take one of two forms. SeeHolt v. United States, 46 F.3d 1000,
1002 (10th Cir. 1995). First, a party may make a facial challenge to the plaintiff's
allegations concerning subject matter jurisdiction, thereby questioning the
sufficiency of the complaint. Seeid. In addressing a facial attack, the district
court must accept the allegations in the complaint as true. "Second, a party may
go beyond allegations contained in the complaint and challenge the facts upon
which subject matter jurisdiction depends." Id. at 1003. In addressing a factual
attack, the court does not "presume the truthfulness of the complaint's factual
allegations," but "has wide discretion to allow affidavits, other documents, and a
limited evidentiary hearing to resolve disputed jurisdictional facts under Rule
12(b)(1)." Id. Because we construe the United States' Rule 12(b)(1) motion to
dismiss for lack of standing to be a facial attack on the complaint, rather than a
factual one, we accept Appellants' allegations of material facts as true and
construe the complaint in favor of Appellants. SeeRiggs v. City of
Albuquerque,
916 F.2d 582, 584 (10th Cir. 1990). The same standard applies to the United
States' Rule 12(b)(6) motion to dismiss based upon the doctrine of laches and the
statute of limitations. SeeSutton v. Utah State Sch. for the Deaf & Blind,
173
F.3d 1226, 1236 (10th Cir. 1999).

B. Analysis

1) Standing

The magistrate found that Appellants had not established standing to
bring
this Rule 41(e) motion because they offered "only a list of vaguely described
property," and "[a] conclusory allegation of ownership in vaguely described
property is insufficient to confer standing to assert a claim for the property."
Appellants argue that the magistrate erred in its standing determination because it
misapprehended the Tenth Circuit test for standing, and required detailed proof of
ownership at a time in the proceedings when it is not required. In response, the
United States argues that Appellants have presented only an "unsupported
declaration in which Gabriel Aguirre broadly proclaims that a laundry list of
property was seized and that the property was owned by either him or his
relatives," which is insufficient to establish a "facially colorable interest" in the
Rule 41(e) proceedings, as required by Article III to establish standing.

The Tenth Circuit has interpreted the constitutional and prudential
requirements for standing in the following manner:

[T]he term 'standing' subsumes a blend of constitutional
requirements and prudential considerations. Article III of the
Constitution requires a plaintiff to show: (1) he or she has personally
suffered an injury in fact; (2) the injury is fairly traceable to the
challenged action of the defendant; and (3) it is likely, not merely
speculative, that the injury will be redressed by a favorable decision.
Beyond the constitutional requirements, a plaintiff must also satisfy
the following set of prudential principles: (1) the plaintiff generally
must assert his or her own legal rights; (2) the court must refrain
from adjudicating 'generalized grievances' most appropriately
addressed by one of the other branches of government; and (3) the
plaintiff's complaint must fall within the zone of interest to be
protected or regulated by the statute or constitutional guarantee in
question.

Finally, at the preliminary juncture in a case at which standing is typically
assessed, "the claimant need not prove the full merits of her underlying claim.
All that needs to be shown is a facially colorable interest in the proceedings
sufficient to satisfy the case-or-controversy requirement and prudential
considerations defining and limiting the role of the court." United States v. 116
Emerson Street, 942 F.2d 74, 78 (1st Cir. 1991) (citations and quotations
omitted). "At the pleading stage, general factual allegations of injury resulting
from the defendant's conduct may suffice, for on a motion to dismiss we
presum[e] that general allegations embrace those specific facts that are necessary
to support the claim." Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992)
(citations and internal quotations omitted) (alteration in original).

In a Rule 41(e) proceeding, a claimant must allege "a colorable ownership,
possessory or security interest in at least a portion of the defendant property" to
satisfy the standing requirements. United States v. $515,060.42 in U.S. Currency,
152 F.3d 491, 497 (6th Cir. 1998). When the claimant alleges such an interest in
the seized property, the standing requirements are satisfied "because an owner or
possessor of property that has been seized necessarily suffers an injury that can be
redressed at least in part by the return of the seized property." Id.

Reviewing Appellants' allegations of standing under the traditional
standing analysis, we find they have asserted facts sufficient to establish standing
to pursue this Rule 41(e) motion.

In regard to the constitutional standing requirements, Appellants have
alleged that they each have suffered an "injury in fact" caused by the defendants,
due to either: (1) the United States' retention of seized property without
commencing valid civil forfeiture proceedings against it, or (2) in the alternative,
the United States' administrative forfeiture of the seized property without
appropriate notice. The return of the property, or its monetary equivalent,
pursuant to Rule 41(e) would redress Appellants' grievances. SeeTorres v.
$36,256.80 U.S. Currency, 25 F.3d 1154, 1158 (2d Cir. 1994) ("[The claimant]
clearly asserts a distinct and palpable injury ­ the loss of $30,000 through an
allegedly unlawful forfeiture ­ that is the direct result of putatively illegal
governmental action, and the injury would be redressed by a successful challenge
to the forfeiture.") (quotations and citations omitted).

Similarly, Appellants have alleged sufficient facts to satisfy the prudential
requirements for standing. First, each of the four Appellants is asserting his or
her own legal rights, stating, "Defendants contend that there was a large amount
of personal property seized from them, and which appeared on itemized returns on
the search warrants, which were never named or forfeited in these three civil
forfeiture actions." The next sentence reads: "A list of this property is attached
as Appendix A to this motion." (Id. (emphasis added).) We assume the phrase
"this property" in the second sentence refers to the "large amount of personal
property seized from them," meaning these Appellants. We find these allegations
of an ownership or lawful possessory interest in the seized items is sufficient to
establish that Appellants are asserting their own rights, as opposed to the rights of
others.(6)

In concluding that Appellants are asserting their own rights rather than the
rights of third parties, we also rely upon Rodriguez-Aguirre's declaration
explaining his connection to the property. Rodriguez-Aguirre stated that he
owned, leased or possessed thirty-two of the fifty-one seized real properties at
issue in the first forfeiture action, Fifty-One Items, and it appears that the 127
items of personal property at issue in this case were seized from those real
properties. Rodriguez-Aguirre also states, just prior to setting forth the list of 127
items of personal property, "I have reviewed the complaints in each [of the three
civil forfeiture actions] . . . and find no orders forfeiting any of the following
personal property which either I or my relatives own." The United States
correctly notes that Rodriguez-Aguirre does not specify which of his relatives
owns what property, and that the phrase "my relatives" conceivably could refer to
relatives of Rodriguez-Aguirre who are not parties to the Rule 41(e) motion. We
nonetheless find that, when reading the sentence in context of the entire motion
and keeping in mind our duty to construe the complaint in favor of Appellants,
seeRiggs, 916 F.2d at 584, Rodriguez-Aguirre was asserting in his declaration
that the 127 listed items were owned either by him or by one of the three relatives
who are parties to this action. Finally, Rodriguez-Aguirre states that the storage
area from which much of the personal property was apparently seized "belonged
to us," which we similarly interpret to mean that the storage area was owned or
leased by Rodriguez-Aguirre and the three other named Appellants.

Based on these allegations, we find that Appellants have asserted a
colorable ownership or lawful possessory interest in at least some of the 127
items of property listed in Rodriguez-Aguirre's declaration and are thus asserting
their own rights rather than the rights of third parties in filing this Rule 41(e)
motion.(7)

Some courts have suggested in the Rule 41(e) context that both "an
allegation of ownership and some evidence of ownership are together sufficient to
establish standing to contest a civil forfeiture." See, e.g., Torres, 25 F.3d at
1158
(emphasis added). We find these cases unavailing. First, Rule 41(e) requires that
the claimant be "entitled to lawful possession of the property," not that the
claimant prove lawful ownership of the property. Requiring proof of
ownership,
as opposed to lawful possession, is therefore not required under the Rule, even at
a later stage in the proceedings such as summary judgment or trial. Second, at
this stage in the proceedings we are concerned only with the allegations contained
in Appellants' complaint and not with actual evidence because we are reviewing a
motion to dismiss that was granted by the district court. Requiring evidence of
ownership, as opposed to allegations of ownership, is antithetical to the standards
for reviewing 12(b)(1) motions to dismiss for lack of facial standing. Cf.Riggs,
916 F.2d at 584 (stating that we accept the plaintiff's allegations as true and
construe the complaint in the plaintiff's favor when reviewing a 12(b)(1) motion).
Third, this is not a case where the claimant has acknowledged that he does not
own the property but nonetheless seeks its return, seeMercado v. United States
Customs Service, 873 F.2d 641 (2d Cir. 1989) (where the claimant asserted that
an unidentified third party owned the seized property but that he had a lawful
possessory interest in it, and the district court requested evidence of ownership
before deciding to grant summary judgment against the claimant), nor is it a case
where evidence indicates that the claimant is asserting an ownership interest in
property that at first glance appears to belong entirely to someone else, seeTorres, 25 F.3d at 1156 (where the claimant asserted an ownership interest in a
forfeited certificate of deposit issued in the name of her husband only). To the
contrary, this is a case where the claimants are asserting an ownership or lawful
possessory interest in personal property that was seized from real property owned
by them, and where there is nothing to indicate that the requested property
actually belongs to third parties who are not parties to the Rule 41(e) motion.
Under these circumstances, we find that Appellants' allegations of ownership,
without the addition of outside evidence of ownership, are sufficient to establish
standing. Cf.United States v. Maez, 915 F.2d 1466, 1468 (10th Cir. 1990)
("[T]he seizure of property from someone is prima facie evidence of that person's
entitlement, particularly when the seized property is money.").

Lastly, this is a specific grievance brought by Appellants in what appears to
be the proper judicial forum, the judicial district in which the property was seized,
and by the appropriate means, a Rule 41(e) motion for return of property. And
there is no question that Appellants' claims fall within the "zone of interest"
protected by Rule 41(e), as they deal squarely with "the deprivation of property"
caused either by the United States' failure to return Appellants' property that was
never forfeited or by the United States' unconstitutional forfeiture of Appellants'
property without notice.

For the foregoing reasons, we conclude that Appellants have satisfied both
the constitutional and prudential requirements for standing and therefore that the
district court erred in dismissing Appellants' motion for lack of standing.

2) Doctrine of Laches

The magistrate found Appellants' Rule 41(e) motion barred by the doctrine
of laches because Appellants did not bring their motion until approximately seven
years after the property was seized, and because the extended criminal litigation
in which Appellants had been involved during that time was no excuse for the late
filing of Appellants' motion. The magistrate made no finding as to whether the
United States was materially prejudiced by Appellants' delay. Appellants argue
that the magistrate erred when it did not require the United States to demonstrate
material prejudice from the delay. Appellants further argue that their delay in
filing the Rule 41(e) motion should be excused given the extended criminal
litigation related to the seized property, the amount of property involved in the
three civil forfeiture proceedings, and the government's right to retain the
property until the conclusion of the criminal prosecution. In response, the United
States argues that, while the magistrate did not make a factual finding that "the
government was materially prejudiced by [Appellants'] delay," the "prejudice to
the government caused by a seven and one-half year delay was obvious." The
United States adds: "Although proof of prejudice could have been more specific
and the Magistrate could have articulated the prejudice prong of the laches
doctrine, it is nonetheless apparent that the parties and the court would encounter
substantial gaps in both testimonial and documentary evidence due to
[Appellants'] delay." Finally, the United States argues that material prejudice is
also established by the fact that Appellants waited to file their Rule 41(e) motion
until after the United States' five-year statute of limitations on bringing a
forfeiture action had run, and therefore Appellants' "motion was purposefully
designed to prevent the government from pursuing judicial remedies that might
otherwise be available."

As an initial matter, we note that the question of whether the doctrine of
laches bars Appellants' motion is intimately bound up with the question of
whether a statute of limitations applies to Rule 41(e) motions. Because laches is
a judicially created equitable doctrine, whereas statutes of limitations are
legislative enactments, it has been observed that "[i]n deference to the doctrine of
the separation of powers, the [Supreme] Court has been circumspect in adopting
principles of equity in the context of enforcing federal statutes." County of
Oneida v. Oneida Indian Nation, 470 U.S. 226, 262 n.12 (1985) (Stevens, J.,
dissenting in part) (relying generally on Weinberger v. Romero-Barcelo, 456 U.S.
305 (1982)). Accordingly, "[w]hen a limitation on the period for bringing suit
has been set by statute, laches will generally not be invoked to shorten the
statutory period." SeeIkelionwu v. United States, 150 F.3d 233, 238 (2d Cir.
1998); see alsoLyons Partnership, L.P. v. Morris Costumes, Inc., 243 F.3d 789,
799 (4th Cir. 2001) ("When federal courts, in the exercise of their equitable
power, consider laches, they are guided by the limitations period that they would
borrow for actions at law and presume that if an equitable claim is brought within
the limitations period, it will not be barred by laches."); Ashley v. Boyle's
Famous Corned Beef Co., 66 F.3d 164, 169 n.3 (8th Cir. 1995) ("But even when
applying laches to an equitable claim, courts apply a presumption that the action
is not barred if brought within the statute of limitations period for 'analogous'
actions at law.").

Because we conclude that the six-year statute of limitations contained in 28
U.S.C. § 2401(a) applies to motions brought under Rule 41(e), any motion
brought within that six-year period would generally not be barred by the doctrine
of laches. Because we conclude that Appellants' motion is most likely not time-barred under
§ 2401(a), the Rule 41(e) motion would appear to be timely in regard
to the equitable doctrine of laches, as well.

However, because it is possible, in rare cases, that a statute of limitations
can be cut short by the doctrine of laches, seeArmstrong v. Maple Leaf
Apartments, Ltd., 622 F.2d 466, 472 (10th Cir. 1979) ("The court in the proper
case applies laches although the period of time may be much shorter than
provided in a statute.") (citing John Norton Pomeroy, Equity Jurisprudence
§ 419b, at 175 (5th ed. 1941)), we will briefly address the parties'
laches
arguments on their merits.

"Whether a claim is barred by laches must be determined by the facts and
circumstances in each case and according to right and justice. Laches, in legal
significance, is not mere delay, but delay that works a disadvantage to another."
Hutchinson, 105 F.3d at 564. Thus, "[i]n order to prove the affirmative defense
of laches, the defendant must demonstrate that there has been an unreasonable
delay in asserting the claim and that the defendant was materially prejudiced by
the delay." Id. (emphasis added).

We reject the United States' argument that material prejudice is "obvious"
or "apparent" in this case. The United States argues that Appellants' delay in
bringing the Rule 41(e) motion was prejudicial because: "Memories fade,
forfeited property has been disposed of and retrieval of records will be
unnecessarily difficult and potentially impossible in some instances if records
have been destroyed." This conclusory allegation of prejudice is insufficient to
establish material prejudice to the United States. The seizures occurred only nine
years ago, and the forfeiture proceedings concluded only four years ago; given
this timeline, we think the possibility of material prejudice arising from faded
memories is far from "obvious." Further, the United States has an affirmative
obligation to keep and maintain records of seized property, see 41 C.F.R.
§ 128-50.101 (requiring federal agencies to keep "accurate and current" records of
seized property, including its date of seizure, location and chain of custody), and
consequently cannot blithely argue that "retrieval of records will be unnecessarily
difficult and potentially impossible" as a means to demonstrate material prejudice.
Finally, we reject the United States' argument that Appellants' delay in filing this
Rule 41(e) motion until after the United States' statute of limitations had run
constitutes a "purposeful plan to prevent a party from seeking redress in the
courts [and] certainly constitutes material prejudice." As the Second Circuit has
unequivocally stated:

[W]e cannot agree . . . that the defendant was in some way estopped
from making his Rule 41(e) motion by his having withheld it until
the statute of limitations had run against the government. . . . The
forfeiture statutes give the government vast and important powers,
but they must be exercised in the precise manner the statutes provide.
The statutes impose no duty on a defendant to prevent the
government from losing its rights through carelessness.

For these reasons, we find that the United States has not established
material prejudice due to Appellants' delay in filing their Rule 41(e) motion and
that the district court erred in dismissing Appellants' complaint absent such a
showing.(9) At this stage of the proceedings,
the United States has not
demonstrated that this is one of the rare cases where the doctrine of laches may
properly be invoked notwithstanding the applicability of a specific statute of
limitations. We therefore find that the doctrine of laches may be inapplicable to
this case in any event.

3) Statute of Limitations

As it did below, the United States argues that Appellants' Rule 41(e)
motion was untimely because Rule 41(e) motions are governed by the generic
statute of limitations for civil actions brought against the United States, see 28
U.S.C. § 2401(a), which requires that "every civil action commenced against the
United States shall be barred unless the complaint is filed within six years after
the right of action first accrues." The United States asserts that this limitations
period starts running once the property is seized, which in this case was in 1992,
and thus that Appellants' motion, which was filed on April 20, 2000, is time-barred. Neither the
magistrate nor the district court addressed the United States'
statute of limitations argument when dismissing Appellants' petition. Because
we may affirm the district court "on any grounds for which there is a record
sufficient to permit conclusions of law, even grounds not relied upon by the
district court," United States v. Sandoval, 29 F.3d 537, 542 n.6 (10th Cir. 1994),
however, we will address the United States' statute of limitations argument on its
merits.

This circuit has not yet decided whether the timeliness of Rule 41(e)
motions is governed by the statute of limitations set forth in § 2401(a). The
Second, Fourth and Seventh Circuit Courts of Appeals have ruled on this issue,(10)
and all three have concluded that the limitations period contained in § 2401(a)
applies to Rule 41(e) motions for the return of property. SeeUnited States v.
Duke, 229 F.3d 627, 629 (7th Cir. 2000); United States v. Minor, 228 F.3d 352,
359 (4th Cir. 2000); Polanco v. United States Drug Enforcement Admin., 158
F.3d 647, 653 (2d Cir. 1998). The Fourth Circuit in Minor explained its reliance
on § 2401(a) as follows:

[Section 2401(a)] is a catch-all provision; it establishes a general
limitations period for civil lawsuits against the United States not
otherwise covered by a more specific limitations period. Even if, as
here, no specific limitations period applies directly to the cause of
action at issue, a federal court will first seek to "borrow" a
limitations period applicable to a closely analogous federal or state
action. [The claimant's] action, an equitable cause of action derived
from the Constitution, "is not closely analogous to any statutory
cause of action." Accordingly, we do not "borrow" a limitations
period; rather we apply the six-year period prescribed by § 2401(a).

Minor, 228 F.3d at 359 (citations omitted).(11) We are persuaded by the reasoning
of the Fourth Circuit in Minor, and we now join the Second, Fourth, and Seventh
Circuits in holding that the bringing of Rule 41(e) motions is governed by the
general statute of limitations set forth at 28 U.S.C. § 2401(a).

The more difficult question in this case, however, is not whether the
§ 2401(a) limitations period applies, but at what point that limitations period
started running against Appellants.

The United States asks us to find that the limitations period began running
at the time when the property was seized. Specifically, the United States argues:
"The bottom line is that [Appellants] knew in October[] 1992 that the property
they claim, if it exists, had been seized. Some reasonable statute of limitation
must apply to their claims. In this case, six years from the date of seizure is more
than reasonable and generous."

As the Second Circuit stated when rejecting the same argument in Polanco:
"The district court assumed that the cause of action accrued when the currency
was seized . . . . But the specific constitutional violation alleged ­ the permanent
deprivation of [the claimant's] property without notice ­ did not occur until
sometime later, when the property was forfeited." 158 F.3d at 654 (citing Bay
Area Laundry & Dry Cleaning Pension Trust Fund v. Ferbar Corp., 522 U.S. 192,
195, 201 (1997) (stating that a cause of action accrues when the plaintiff has a
"complete and present" cause of action and "can file suit and obtain relief")
(citations and quotations omitted)). The Fourth Circuit has also rejected the
United States' argument, stating, "We emphasize that the limitations period
begins to run, not when the claimant is on reasonable notice of the government's
seizure of the property, or even when reasonable inquiry would have led to notice
of the government's intention to declare forfeiture, but when reasonable inquiry
would have led to notice of the forfeiture declaration itself." SeeMinor, 228
F.3d
at 359 (emphasis in original). We agree with this analysis, and thus decline the
United States' invitation to set the beginning date of the limitations period at the
date of seizure.

Instead, we adopt the Fourth Circuit's accrual date for Rule 41(e) motions
for return of property: "The accrual date is the date on which [the claimant] was
on reasonable inquiry notice about the forfeiture, i.e., the earlier of the following:
when he first became aware that the government had declared the currency
forfeited, or when an inquiry that he could reasonably have been expected to
make would have made him aware of the forfeiture." Minor, 228 F.3d at 359. In
cases where the Rule 41(e) claimant knows the property was administratively
forfeited but asserts that he was not provided adequate notice of the forfeiture, a
court should therefore measure the limitations period from the earliest of the
following two dates: (1) the date on which the claimant discovered that the
property was forfeited, or (2) the date on which the claimant could reasonably be
expected to have made an inquiry that would have made him aware of the
forfeiture.(12)

However, this standard for measuring the accrual date in a Rule 41(e) cause
of action applies only when there has been an actual administrative forfeiture of
which the claimant is or should be aware. Here, Appellants argue alternatively
the United States never forfeited the 127 items for which Appellants seek
recovery; rather, it simply seized the 127 items and refused to return them.
Appellants claim not to know of any administrative forfeiture proceedings that
may have been brought against the property, and the United States has declined to
advise us whether such administrative proceedings ever occurred. At this point in
the litigation, then, it is impossible for the court to know precisely what happened
to the 127 items of personal property Appellants seek to have returned. Under
these circumstances, we cannot determine whether Appellants' cause of action is
barred by the statute of limitations set forth in § 2401(a) by applying the
standards set forth above.

In a case of seizure and wrongful refusal to return property where no civil
or administrative forfeiture proceeding has been instituted against the property,
we return to the general principle that the accrual date of a cause of action is
when the plaintiff discovered or had reason to discover that he has suffered injury
due to the defendant's actions. SeePolanco, 158 F.3d at 654; Minor,
228 F.3d at
359. Indeed, the "federal common law rule on when a statute of limitations
begins to run is that it is when the plaintiff discovers, or by exercise of due
diligence would have discovered, that he has been injured and who caused
the
injury." Duke, 229 F.3d at 630 (emphases in original) (citing United States v.
Kubrick, 444 U.S. 111, 120-21 (1979); Fries v. Chicago & Northwestern Trans.
Co., 909 F.2d 1092, 1095 (7th Cir. 1990); Oshover v. Levin, Fishbein, Sedran &
Berman, 38 F.3d 1380, 1386 (3d Cir. 1994)).

In the Rule 41(e) context, we hold that the date on which a claimant can
reasonably be expected to inquire after property that has been seized by the
United States in conjunction with criminal proceedings, but has not been the
subject of criminal, civil or administrative forfeiture proceedings, is the date on
which the criminal proceedings against the claimant have concluded. The
government is clearly permitted to seize evidence for use in investigations and
trial. See, e.g., Warden v. Hayden, 387 U.S. 294, 306 (1967); United States
v.
Premises Known as 608 Taylor Ave., Apt. 302, 584 F.2d 1297, 1302 (3d Cir.
1978). "Nevertheless, the government may not by exercising its power to seize,
effect a [d]e facto forfeiture by retaining the property seized indefinitely." 608
Taylor Ave., 584 F.3d at 1302. Thus, the general rule is that "seized property,
other than contraband, should be returned to its rightful owner once the criminal
proceedings have terminated."(13)Cooper v. City of Greenwood, 904 F.2d 302, 304
(5th Cir. 1990); see, e.g., United States v. Francis, 646 F.2d 251, 262 (6th Cir.
1981); United States v. Farrell, 606 F.2d 1341, 1343 (D.C. Cir. 1979); 608 Taylor
Ave., 584 F.2d at 1302; United States v. LaFatch, 565 F.2d 81, 83 (6th Cir. 1977);
United States v. Brant, 684 F. Supp. 421, 423 (M.D.N.C. 1988); cf.Lowther v.
United States, 480 F.2d 1031, 1033-34 (10th Cir. 1973) (finding that the
government could not, without commencing forfeiture proceedings, retain and
destroy evidence which was not illegal perse after the claimant was acquitted
of
criminal charges). Accordingly, it has been recognized that the non-contraband
"property of [an] accused in a criminal case, seized by officers and used as
evidence, generally will be returned to him on proper application, and property
taken under a search warrant is generally returned to its rightful owner when no
longer needed in aid of a criminal prosecution if its ownership is undisputed." 79
C.J.S. Searches and Seizures § 114 (1952); Farrell, 606 F.2d at
1347 (stating that
seized property should be returned to its rightful owner unless it is contraband, it
has been forfeited by the government, or "the property involved is subject to
government retention pending termination of the trial"); cf.United States v.
Wilson, 540 F.2d 1100, 1101 (D.C. Cir. 1976) (acknowledging the district court's
jurisdiction and duty to ensure the return of "property seized from [a criminal
defendant] in the investigation but which is not . . . stolen, contraband, or
otherwise forfeitable, and which is not needed, or is no longer needed, as
evidence").

For these reasons, we hold that the limitations period for a Rule 41(e)
motion seeking the return of property that has been seized in conjunction with a
criminal investigation, but against which the government has not instituted
forfeiture proceedings, begins to run at the conclusion of the government's
criminal proceedings against the defendant. Prior to that point in time, the
government arguably has the right to possess the property as evidence (at least,
absent a successful suppression challenge) and the defendant consequently has no
reasonable expectation that it will be returned. After the criminal proceedings
conclude, however, the government has no right to retain the property, absent the
commencement of forfeiture proceedings, and its continued retention of the
property from that point forward could legitimately be viewed as a deprivation of
the defendant's due process rights.(14) It
is at this point, then, that a criminal
defendant can reasonably be expected to make an inquiry that would place him on
notice of the government's intention to retain the property, thus allowing him to
discover that his property is being held by the government despite the lack of
forfeiture proceedings.

Appellants are seeking the return of property that was not contraband perse, although it may well have been derivative contraband, seesupra
n.14, and
against which it appears the United States may not have instituted valid forfeiture
proceedings. Appellants thus had a reasonable expectation that, once the criminal
proceedings against them concluded and the government had failed to institute
forfeiture proceedings against the property, that property would be returned to
them. They could have inquired as to the United States' intended disposition of
the property at that point in time, and Appellants' failure to do so does not excuse
them of not learning information that the exercise of due diligence would most
certainly have revealed. Cf.Duke, 229 F.3d at 630 ("The discovery rule does
not
permit the victim of an alleged wrong to postpone the running of the statute of
limitations by willfully closing his eyes, ostrich-like, to a known probability that
he has been injured, even if he is not certain. A plaintiff who either knew that he
was injured or should have known is deemed to have 'discovered' the injury for
purposes of the statute of limitations."). We therefore find that Appellants are
charged with knowledge of the United States' alleged unconstitutional retention
of the property as of the date on which criminal proceedings against Appellants
concluded.(15)

In summary, we hold that the limitations period contained in 28 U.S.C.
§ 2401(a) applies to Rule 41(e) motions for return of property, regardless of
whether the property in question was administratively forfeited without adequate
notice or was never forfeited but nonetheless retained by the government. In the
former scenario, in which the claimant's property was administratively forfeited
without notice, we hold that the claimant's cause of action accrues on the earliest
of the following two dates: (1) the date on which the claimant discovered that the
property was forfeited, or (2) the date on which the claimant could reasonably be
expected to have made an inquiry that would have made him aware of the
forfeiture. In the latter scenario, in which the property has been retained by the
government despite its failure properly to forfeit the property, we hold that the
claimant's cause of action accrues at the conclusion of the criminal proceedings
against him. Because we cannot determine at this point in the case which accrual
date to apply, given the dearth of information regarding whether administrative
forfeiture proceedings were ever brought against Appellants' property, we
REMAND this case to the district court to determine in the first instance the
timeliness of Appellants' Rule 41(e) motion.

CONCLUSION

For the foregoing reasons, we hold that the district court erred in
dismissing this case for lack of standing and in concluding that Appellants' claim
was barred by the doctrine of laches. We further find that the limitations period
set forth in 28 U.S.C. § 2401(a) applies to the bringing of this motion, but that the
record is insufficient for us to determine in the first instance whether Appellants'
motion was timely. We therefore REVERSE the district court's decision and
REMAND this case for further proceedings consistent with this opinion.

FOOTNOTESClick footnote number to return to corresponding location in the text.

1. Two Appellants, Rodriguez-Aguirre and
Aguirre, have appeals of their
petitions for a writ of habeas corpus pending before the Tenth Circuit. SeeUnited States v. Rodriguez-Aguirre, No. 00-2382; United States v. Aguirre, No.
00-2384.

2. Rodriguez-Aguirre asserts that he
included a declaration in support of
the Rule 41(e) motion "because the prosecutors in this case have repeatedly
'warned' [his attorney] that she could be held in contempt if she filed a motion
for return of property on behalf of the Aguirres, citing the February 25, 1999
order from Judge Black in the related forfeiture case [Fifty-One Items]." Judge
Black entered an order in Fifty One Items after receiving filings seeking to vacate
those forfeitures from two fugitives in the criminal case, because he concluded
that the filing of additional pleadings in that case "gave rise to a substantial
danger of fraud being perpetrated on the Court." In that order, Judge Black
directed that no further pleadings would be accepted in regard to the forfeiture
proceeding without prior approval by the court and without the service of an
attorney licensed to practice in the State of New Mexico.

4. Appellants were not only partners in the
drug cartel, but are relatives, as
well. Cf.Rodriguez-Aguirre, 108 F.3d at 1230 ("Mr. Aguirre managed a
family-run organization ('the Aguirre organization') specializing in the sale and
distribution of large amounts of marijuana and cocaine.") Eleno Aguirre is
Rodriguez-Aguirre's brother. SeeAguirre, 108 F.3d at 1285. Doloras
Contreras
is Rodriguez-Aguirre's daughter. SeeContreras, 108 F.3d at 1258. The record
does not explain Bancomo's relationship to Rodriguez-Aguirre, but we know the
two men are related, seeRodriguez-Aguirre, 108 F.3d at 1234, and Appellants'
counsel states in her reply brief to this court that Bancomo is Rodriguez-Aguirre's
nephew. At least some of Rodriguez-Aguirre's relatives who were associated with the
drug cartel are not parties to the instant Rule 41(e) motion. See, e.g.,
Rodriguez-Aguirre, 108 F.3d at 1234 ("With the exception of defendant Sonia Gallegos,
all of
the [nine] defendants were relatives."). And at least some of the property seized
pursuant to the 1992 search warrants appears to have belonged to identified
individuals who were relatives of Rodriguez-Aguirre but who are not parties to this
action. SeeAguirre, 108 F.3d at 1235 (noting that the agents seized "two
certificates
of title for trailers owned by Raul Hernandez"). Although it is impossible to know
at this point in the litigation whether Appellants will attempt to assert an interest in
that property, as well, we interpret Rodriguez-Aguirre's declaration to assert an
ownership or possessory interest only in the property seized from these four
Appellants and not from any other relative of Rodriguez-Aguirre. See discussion
infra pp. 14-15.

5. Although the motion to dismiss did not
specify the Rule of Civil
Procedure under which dismissal was sought, we assume it was Rule 12(b)(1)
regarding the standing argument and Rule 12(b)(6) regarding the laches and
statute of limitations arguments.

6. In addition, we note that some, if not all,
of the property seized pursuant
to the 1992 warrants was forfeited by the government in three separate civil
forfeiture proceedings based upon the government's argument that Appellants
(and their co-defendants) owned or possessed the property and used it in
furtherance of the charged drug conspiracy. Given that fact, we think it slightly
disingenuous for the United States to now argue that Appellants have not shown
a colorable interest in other property seized pursuant to those same warrants.

7. We acknowledge the United States' twin
concerns that some of the listed
property may be inadequately described or might have belonged to a third party
who is not a party to this litigation. We nevertheless find that those concerns are
not dispositive of the standing inquiry. Appellants have alleged a colorable
interest in at least some of the listed property and thus are asserting their own
right to have that property returned. Whether some of the listed property does
not, in fact, belong to Appellants is a matter better dealt with on summary
judgment or at trial. Similarly, whether any of the 127 listed items were actually
forfeited in one of the three civil forfeiture proceedings is not an issue this court
can resolve at the motion to dismiss stage, particularly because the judgments of
forfeiture and the documents underlying them are not all included in the record.
In any event, Appellants have explicitly stated that if any of these items were
forfeited in any of the three civil forfeiture proceedings, they "will withdraw their
request for return of those items." Finally, whether some of the items are
described in a manner that makes it impossible to verify either their existence or
their seizure by the United States is simply not an issue to be resolved as a matter
of standing.

8.See alsoUnited States v.
Clymore, 245 F.3d 1195 (10th Cir. 2001)
(holding that, if an adequate nexus can be established between the crime and the
property being forfeited, the court may quiet title to property in favor of the
government, even where the claimant has filed Rule 41(e) motion for return of
property and the statute of limitations has run on the government's right to
institute forfeiture proceedings on its own).

9. Because we find that the district court
erred in not requiring the United
States to demonstrate material prejudice, we need not address Appellants'
alternative argument regarding the doctrine of laches, i.e., that the magistrate
clearly erred when it found Appellants' delay in filing the Rule 41(e) motion to
be "unexplained, unjustified and inexcusable."

10. The Fifth Circuit has assumed, but has
not explicitly stated, that
§ 2401(a) applies to Rule 41(e) motions for the return of property. SeeClymore v.
United States, 217 F.3d 370, 373 (5th Cir. 2000) (stating "[t]he parties agree that
in civil actions the statute of limitation for the return of property is supplied by
28 U.S.C. § 2401(a)").

11. The Minor court also noted:
"[Section] 2401 governs actions brought
under both the APA and the Tucker Act. Thus, even if it were appropriate to
'borrow' a limitations period from an analogous cause of action, a court might
well look to § 2401." 228 F.3d at 359 n.6 (citations omitted).

12. We acknowledge the potential
inconsistency of applying the limitations
period set forth in § 2401 to cases involving administrative forfeitures effected
after constitutionally inadequate notice, given that we have declared such
forfeitures "void" due to the constitutional inadequacies. SeeClymore v. United
States, 164 F.3d 569, 574 (10th Cir. 1999). Although we have never addressed
this question in the Rule 41(e) context, "void" judgments are generally open to
challenge at any time. SeeVTA, Inc. v. Airco, Inc., 597 F.2d 220, 224-25
(10th
Cir. 1979) (stating that Federal Rule of Civil Procedure 60(b)(4) motions to
vacate void judgments may be brought at any time); United States v. One Color
Toshiba Television, 213 F.3d 147, 157 (3d Cir. 2000) ("[N]early overwhelming
authority exists for the proposition that there are no time limits with regards to a
challenge to a void judgment because of its status as a nullity . . . .") (finding that
there is no time limit for filing a Rule 60(b) motion to vacate a void judicial
forfeiture judgment). Of course, where there has been an administrative
forfeiture, there has been no "judgment" that could be open to challenge in the
federal courts pursuant to Rule 60(b)(4). See 19 U.S.C. § 1609 (stating
that the
appropriate customs officer "shall declare" property forfeited if the
administrative forfeiture process goes unchallenged for the required length of
time); 21 C.F.R. § 1316.77 (same process applies to DEA officers). Further, we
agree with our sister circuits that a reasonable statute of limitations must apply to
Rule 41(e) motions. SeePolanco, 158 F.3d at 653; Minor, 228 F.3d at
359;Duke, 229 F.3d at 629. Because it would be incongruous to apply a limitations
period to some Rule 41(e) motions, e.g., where the government retained the
claimant's property without ever commencing forfeiture proceedings against it,
but not to other Rule 41(e) motions, e.g., where the government did commence
administrative forfeiture proceedings but did not provide adequate notice to
claimants, we find the § 2401(a) limitations period applicable to all Rule 41(e)
motions, despite the "void" status of the latter type of forfeitures.

13. There are two types of contraband,
contraband perse and derivative
contraband. Cooper, 904 F.2d at 305. As the Fifth Circuit has explained:

Contraband perse consists of objects which are "intrinsically illegal
in character," "the possession of which, without more, constitutes a
crime." One 1958 Plymouth Sedan v. Pennsylvania, 380 U.S. 693,
699-700 (1965). A typical example is cocaine, a controlled
substance, the possession of which is unlawful under the Controlled
Substances Act, 21 U.S.C. §§ 801 et.seq. Courts will not
entertain a
claim contesting the confiscation of contraband perse because one
cannot have a property right in that which is not subject to legal
possession. Id.; United States v. Jeffers, 342 U.S. 48 (1951),
overruled on other grounds byRakas v. Illinois, 439 U.S. 128
(1978).

By contrast, derivative contraband includes items which are
not inherently unlawful but which may become unlawful because of
the use to which they are put ­ for example, an automobile used in a
bank robbery. . . . Because a property interest in derivative
contraband is not extinguished automatically if the item is put to
unlawful use, the forfeiture of such an item is permitted only as authorized by statute,
Farrell [606 F.2d at 1343], and such
forfeitures are subject to scrutiny for compliance with the safeguards
of procedural due process. See, e.g., United States v. $8,850 in U.S.
Currency, 461 U.S. 555 (1983); United States v. $23,407.69 in U.S.
Currency, 715 F.2d 162 (5th Cir. 1983); Vance v. United States, 676
F.2d 183 (5th Cir. 1982).

Id. Thus, while a criminal defendant has no expectation that contraband perse
will ever be returned, a criminal defendant does have a legitimate expectation
that other property, including property that may well be derivative contraband,
will be returned to him once the criminal proceedings against him conclude,
unless and until the government successfully forfeits that property.

14. This holding is not precluded by our
recent statement in United States v.
Clymore, 245 F.3d 1195 (10th Cir. 2001), that the government holds "unperfected
right to title" in derivative contraband "[a]t the time the government takes
possession" of the property. Id. at 1200. The mere fact that the government may
lawfully possess seized property prior to the commencement of forfeiture
proceedings, and that the title to such property may vest in the United States after
forfeiture proceedings have concluded, does not mean a criminal defendant should
not reasonably be expected to inquire after the seized property once his criminal
proceedings have concluded. As the Clymore panel noted, "'when the criminal
proceedings have terminated . . . the person from whom the property was seized is
presumed to have a right to its return, and the government must demonstrate that
it has a legitimate reason to retain the property.'" Id. at 1201 (quoting United
States v. Chambers, 192 F.3d 374, 377 (3d. Cir. 1999) (citations and quotations
omitted)).

15. We decline to determine here whether
the conclusion of criminal
proceedings occurs after the trial and sentencing, or whether it occurs only after
the appeals process has run its course. We do not decide that issue, first, because
the parties have not briefed that issue, and, second, because that determination is
not necessary to the resolution of this case. Appellants were convicted on
December 15, 1994, and direct appeals of the convictions of Rodriguez-Aguirre,
Aguirre and Conteras were resolved in 1997. The Rule 41(e) motion was brought
on April 20, 2000. It therefore appears that Appellants' motion was brought
within the six-year statute of limitations provided by 28 U.S.C. § 2401(a)
regardless of which date is used as the starting point for the limitations period
governing Appellants' cause of action.